By Kent B. Scott and Cody W. Wilson The success of mediation is mainly determined by the parties. It is their process and they are in control of the ultimate result. While there is no guarantee that any mediation will succeed, there are some common elements found in successful mediations: The mediator selected by the parties had the skills, knowledge and style (i.e., evaluative or facilitative) that fit the dispute and personalities involved in the mediation. People with knowledge of the dispute and others with authority to settle on each side’s behalf were present at the mediation. The parties exchanged enough information to be able to understand the positions and perspectives of the other. The attorneys and the party representatives were well prepared to mediate. The parties identified their respective needs and interests and formulated proposals that would satisfy the interests of each participant. The mediator, the parties and their attorneys were committed to making the mediation work. They did not give up on the process too early and were willing to explore all available avenues and options. Conclusion Mediation is very effective in helping parties settle all kinds of disputes. But to work, the parties must remain flexible and avoid “drawing a line in the sand.” Nothing brings the mediation to an impasse quicker than focusing on the “bottom line” approach. The parties select the mediator they want to serve as a catalyst in negotiations. The parties control the ultimate outcome. The questions and answers presented here identify the information parties need to know in order to decide whether to mediate, as well as the information they need to know to be prepared to engage effectively in mediation. The parties’ reactions to this information is highly germane to the means and methods that will be used in the mediation. Thus, after learning the client’s reactions and their preferences for the mediation, counsel should convey this information to the mediator so that they can design the appropriate mediation protocol. Mediators should also be interested in the questions that parties ask their counsel about the mediation process so that they can be aware of unstated concerns in private caucuses. [Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.] Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution. Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at kent@babcockscott.com and cody@babcockscott.com. ?
Continue reading...Peter S. Vogel, trial partner at Gardere Wynne Sewell LLP and contributor of this blog will host “Social Media: eMail, SPAM, Spyware, and Phishing,” a State Bar of Texas Webcast on Wednesday, July 28th 12:30-1:30pm CST. DESCRIPTION: The Internet has transformed communications as evidenced by the current estimate that over 210 billion emails are sent daily, 50 million tweets are sent daily, and over 1.5 trillion text messages were sent in 2009. So the impact of SPAM and Phishing has never been greater, and undoubtedly will continue to grow. Botnets and Spyware are omnipresent as they are integrated into the billions of emails sent each day. Without question Social Media has had a significant impact on Internet users on the likes of Facebook, MySpace, YouTube, LinkedIn, Yelp, and dozens of other Internet sites. This webcast will explore issues that confront all lawyers and clients in 2010 and the future. Find out more here. Technorati Tags: law, ADR, arbitration
Continue reading...By William G. Whitehill In In re Merrill Lynch & Co., Inc. and Merrill, Lynch, Pierce, Fenner; Smith Incorporated, __ S.W.3d __ (June 25, 2010 slip op.), the Texas Supreme Court conditionally granted mandamus relief in favor of Merrill Lynch, staying litigation against it by a non-signatory company when that company’s sister company that was a signatory to an arbitration agreement was also asserting identical claims that were potentially subject to a class action carve out from its arbitration agreement with Merrill Lynch, the defendant in both cases. The signatory company had been a party to a class action suit that was dismissed. The possibility remained, however, that the class action could be revived. Until that issue was resolved, it would not be possible to determine whether the signatory’s claims would be required to be arbitrated. If the signatory’s claims were to be arbitrated (i.e., there was no class action), the non-signatory’s suit could not proceed until after the arbitration. (Conversely, if the signatory’s claims were to proceed in a class action, the carve out would apply and the non-signatory could proceed with its litigation proceeding.) In so holding, the Texas Supreme Court relied on its prior decision in In re Merrill Lynch Trust Co., 235 S.W.3d 185, 195 (Tex. 2007) in which it held that where “the same issues must be decided in both arbitration… and in court … the latter must be stayed until the former is completed.” In so holding, the Supreme Court further held that when an issue is pending in both arbitration and litigation, the Federal Arbitration Act generally requires the arbitration to go forward first; arbitration ‘should be given priority to the extent it is likely to resolve issues material to this lawsuit.’ This has been the practice in all the federal courts. (footnotes omitted). In the present case, the court observed that the only factual difference from its prior decision was the class action carve out provision and the fact that whether the signatory would participate in a class action suit remained an undecided issue. Nonetheless, the Supreme Court based its mandamus relief on the fact that the class action issue necessarily would be resolved in the future and that protecting Merrill Lynch’s bargained for arbitration right took priority over the non-signatory’s desire to proceed with its litigation claim. Both cases reflect the trend among the majority of U.S. courts to enforce arbitration agreements based on traditional contract law principles. William G. Whitehill is a trial partner at Gardere Wynne Sewell LLP. Mr. Whitehill has represented an offshore drilling contractor, a national pipe and fittings foundry, a food products manufacturer, a natural gas producer, and other companies in substantial antitrust claims. Mr. Whitehill has also represented a plaintiff’s class in a successful trial and appeal of substantial pension benefit claims. He holds a B.B.A. in Finance from The University of Texas at Austin and a J.D. from Southern Methodist University. Mr. Whitehill may be reached at bwhitehill@gardere.com.
Continue reading...By U.S. District Judge W. Royal Furgeson, Jr. Dear Friends: I have read with interest “Why Isn’t ADR More Popular? A Report from Harvard.” From my perspective as a judge, I would recommend that lawyers be very careful about inserting mandatory arbitration language into their client’s contracts. First, I see a great deal of buyer’s remorse in cases where there is a mandatory arbitration clause that leaves a party no choice but to arbitrate. Mandatory arbitration is no panacea. It is costly. Indeed, I hear anecdotally from lawyers that it is becoming more costly than trials. The rules of procedure and evidence are not clear. The arbitrator can be wrong on the law and the facts and his/her decision almost always must be given full effect by courts. There is in actuality no review process under the FAA. Second, if mandatory arbitration is such a good thing, then why not wait till the dispute arises. The parties are free to agree at that time. Third, if the goal is to avoid juries (which is a wrong headed goal, by the way), then the parties can just as easily agree in their contract to waive a jury and try any dispute to a judge. Fourth, if the parties still insist on putting mandatory arbitration language into a contract, they should draft the language very carefully, setting out clear procedures about how to select an arbitrator(s) and about how to conduct the arbitration. This should be thoughtfully considered, at the outset, rather than just some statement that there will be arbitration. Best wishes, Royal Furgeson E-mail: Royal_Furgeson@txnd.uscourts.gov The Honorable W. Royal Furgeson, Jr. received a B.A. from Texas Tech University in 1964 and a J.D. from the University of Texas School of Law in 1967. He was a United States Army Captain from 1967 to 1969 and an assistant county attorney in Lubbock, Texas in 1969. From 1969 to 1970 he was a law clerk for the Honorable Halbert O. Woodward at the U.S. District Court for the Northern District of Texas. Furgeson was in private practice in El Paso, Texas from 1970 to 1993. Furgeson currently serves as a federal judge on the U.S. District Court for the Northern District of Texas. He was nominated by President Bill Clinton on November 19, 1993 and confirmed by the United States Senate on March 10, 1994. Technorati Tags: law, ADR, arbitration
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.